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Judicial Review of Presidential Proclamation under Article 356
by R. Prakash*
Cite as : (1998) 6 SCC (Jour) 13
Negativing the plea of Government of India's arguments that by virtue of Article 74(2) of the Constitution of India, the President's action under Article 356 is immuned from judicial scrutiny, the nine-member Bench of the Supreme Court in S.R. Bommai case1 ruled that Article 74(2) bars courts from enquiring as to any and if so, what advice was tendered by Ministers to the President. But the materials based on which the advice was tendered cannot escape judicial scrutiny. Thus, a distinction was made between advice tendered and materials upon which such advice was tendered.
In this regard, K. Ramaswamy, J. made some observations under the heading "Scope of Judicial Review of Article 356". The purpose of this note is to point out that His Lordship's reasoning is not sound. He observed: (SCC p. 183)
"The matter can be looked at from a different perspective that under Article 361, the President shall not be answerable to any court for the exercise or the performance of his power and duty of his office or for any act purported to have been done by him in the exercise and performance of those powers and duties. When the President acts not necessarily on the aid and advice of the Council of Ministers but only 'or otherwise' i.e. on any other information under Article 356(1) his satisfaction is a subjective one that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution and issues the proclamation required under Article 356(1) of the Constitution. When it is challenged and he is asked to give his reasons, he is immuned from judicial process. The Union of India will not have a say for the exercise of the satisfaction, reached by the President 'on otherwise self-satisfaction' for his issuing the proclamation under Article 356. Then no one can satisfy the Court regarding the grounds for the exercise of the powers by the President. Therefore, we are of the considered view that the advice and, if so, what advice was tendered by the Council of Ministers for exercise of the power under Article 356(1) would be beyond the judicial enquiry under Article 74(2) of the Constitution. Nevertheless, the record on the basis of which the advice was tendered constitute the material... ."
This reasoning proceeds on the premise that the President can issue proclamation under Article 356 without there being any advice from the Council of Ministers. It seems that the words "or otherwise" occurring in Article 356(1) were understood by K. Ramaswamy, J. as conferring individual power on the President. Article 356, to the extent it is relevant for the present discussion runs thus:
"356. Provisions in case of failure of constitutional machinery in States.-(1) If the President, on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation-
The words "or otherwise" cannot be attributed the meaning given by Justice Ramaswamy. As early as in 1974, in Samsher Singh v. State of Punjab2 a seven-Judge Bench of the Supreme Court had settled the law on this question. It was ruled by the Constitution Bench that wherever the word President occurs in the Indian Constitution it signifies the constitutional President aided and advised by the Council of Ministers headed by the Prime Minister. Again in 1981, in Maru Ram v. Union of India3 which was also decided by another Constitution Bench of five Judges, it was ruled that the Governor is the shorthand expression of the State Government and President is the abbreviation of the Central Government. The reasoning in Samsher Singh3 seems to be convincing when Article 356 is read in the light of Article 74 which reads:
"74. Council of Ministers to aid and advise President.-(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President who shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."
In this connection it is worth noting Article 53 which states that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. Thus the executive power of the President is subjected to the limitation that it has to be exercised in accordance with the advice tendered by the Council of Ministers as provided for under Article 74.
From the above discussion, Article 356 has to be read as follows:
356. Provisions in case of failure of constitutional machinery in States.- If the President (Union Council of Ministers), on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution the President (Union Council of Ministers) may by proclamation-
With respect it is submitted that the reasoning of Justice Ramaswamy does not help to interpret our Constitution in a proper perspective.
- S.R. Bommai v. Union of India, (1994) 3 SCC 1 Return to Text
- (1974) 2 SCC 831Return to Text
- (1981) 1 SCC 107Return to Text
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